What’s the Difference Between DUI and DUAC in Charleston, SC?

What’s the difference between DUI and DUAC in Charleston, SC?

Most people are familiar with the offense of DUI (driving under the influence) in SC, but DUAC (driving with an unlawful alcohol concentration) is not as commonly known. If you’ve been charged with DUAC in Charleston, SC, you may be wondering what it means and what’s the difference between DUI and DUAC…

Below, we’ll look at how the two charges are different, how they are the same, and why SC has the crime of DUAC.

DUAC is, more or less, the equivalent of a DUI charge – many of the defenses are the same, you are facing the same penalties if convicted and it is critical that you get an experienced Charleston, SC DUI defense lawyer on your side immediately if you’ve been arrested and charged with DUAC.

What’s the Difference Between DUAC and DUI in Charleston, SC?

The main difference between DUAC and DUI is what the state must prove to get a conviction – the elements of the crime are slightly different.

What does that mean?

What are the Elements of DUI in SC?

Each “element” of a crime must be proven by the state beyond any reasonable doubt before a jury can convict you. For example, the elements of DUI in SC, found in SC Code Section 56-5-2930, are:

  • It is unlawful for a person to drive a motor vehicle within this state,
  • While under the influence of alcohol, drugs, or a combination of alcohol and drugs,
  • To the extent that the person’s faculties to drive a motor vehicle are materially and appreciably impaired.

To convict you at trial, the jurors must unanimously find that the state proved each of these three elements beyond any reasonable doubt.

This means that if jurors find that: 1) you were driving; 2) under the influence of alcohol; but 3) your ability to drive was not materially and appreciably impaired, then you are not guilty of DUI.

It doesn’t matter if 10 people saw you drive, you admit driving, and you blew a .18 on the breathalyzer – if your ability to drive was not materially and appreciably impaired, you are not DUI in SC.

Sounds reasonable, right? The point is to prevent people from driving while they are drunk (and potentially dangerous), not to prevent people from failing a breath test…

What are the Elements of DUAC in SC?

DUAC should be easier for the state to prove.

The elements of DUAC in SC, found in SC Code Section 56-5-2933, are:

  • It is unlawful for a person to drive a motor vehicle within this state,
  • While his alcohol concentration is eight one-hundredths of one percent or more.

So, you can be convicted of DUAC if the jurors find beyond any reasonable doubt that you are driving and that your blood alcohol concentration (BAC) is greater than .08.

The state does not have to prove 1) that you were under the influence or 2) that your faculties to drive were materially and appreciably impaired…

The fact that police and prosecutors usually charge DUI instead of DUAC indicates that it is not easier to prove, though. Why?

  • You can only be charged with DUAC if you took the breathalyzer, urinalysis, or blood test;
  • If the BAC results are excluded or if your attorney can cast doubt on the accuracy of the result, jurors can find you not guilty regardless of how you performed on field sobriety tests; and
  • If you are charged with DUAC and your attorney challenges the BAC results, the state may be required to bring an expert witness to testify at your trial (not something they want to do for a misdemeanor DUAC first offense).

Should I Plead Guilty to DUAC if I’m Charged with DUI in Charleston, SC?

I’ve seen DUI defense lawyers talk their clients into pleading guilty to DUAC because, they said, it’s a “lesser included offense” to driving under the influence.

It’s not.

To my knowledge, there is no benefit to pleading guilty to DUAC instead of DUI other than to avoid a trial. The penalties are the same, the collateral consequences are the same, and neither can be expunged from your record…

How are DUAC and DUI the Same in SC?

Although the State must prove different elements to get a conviction, DUI and DUAC have more similarities than differences. For example:

  • The penalties, including fines, jail time, and mandatory minimum sentences, are exactly the same;
  • The collateral consequences for conviction, like license suspensions, ignition interlock requirements, ADSAP requirements, and SR-22 insurance, are exactly the same;
  • The implied consent proceedings, including the length of license suspensions and the administrative hearing procedure, are exactly the same;
  • Most of the defenses we can raise at trial are the same or similar, including dismissal when the officer does not follow SC’s mandatory videotaping requirements, the use of sobriety witnesses, and challenges to the accuracy of the breathalyzer or blood test results;
  • The inferences for BAC levels are the same for DUI and DUAC (less than .05 – not DUI, .05 to .08 – no inference, greater than .08 – inference of DUI); and
  • The state’s evidence at trial – including the officer’s testimony, testimony about field sobriety tests, and testimony about the breathalyzer or blood test results, are usually the same.

The only major difference between DUI and DUAC in SC is found in the elements that the state must prove to get a conviction at trial.

Why Does SC Have DUAC? Isn’t DUI Enough?

SC, like every state except Massachusetts, was forced to pass a .08 per se law by the federal government. How did the federal government do that?

By bribing the states with millions of dollars, of course. Or by threatening to withhold millions of dollars, depending on how you want to look at it.

The National Highway and Traffic Safety Administration (NHTSA), after a lengthy defense of why they believe .08 per se laws are necessary, provides some legislative history explaining why almost every state jumped on the DUAC train:

On May 22, 1998, Congress passed the Transportation Equity Act for the 21st Century (“TEA 21”), authorizing highway, highway safety, transit and other programs for the next six years. TEA 21 provides $500 million of incentive grants over 6 years to states that have enacted and are enforcing a .08 BAC per se law. These grants are to be based on what a state receives under NHTSA’s State and Community Highway Safety Formula Grant Program, under Section 402 of Title 23, U.S. Code. The grant funds may be used for any project eligible under Title 23, which may include highway construction as well as highway safety projects.

… In October 2000, the Department of Transportation’s 2001 Appropriations Act (HR4475) was passed by both chambers of the U.S. Congress and signed by President Clinton. The Act provides that states must pass a .08 per se law by 2004 or begin losing federal highway construction funds.

Which means that DUAC in SC is here to stay – South Carolina will do what the federal government tells us if it means millions of dollars in highway funding…

So, what happens when the federal government decides that .05 per se laws are necessary? Or zero tolerance laws?

Charleston, SC DUI Defense Lawyer

Charleston, SC DUI defense attorney Grant B. Smaldone focuses his law practice on criminal defense and DUI defense, including:

  • DUI charges;
  • DUAC charges; and
  • Felony DUI with great bodily injury or death.

If you have been charged with a DUI related offense in the Charleston, SC area, call SC DUI defense lawyer Grant B. Smaldone now at (843) 808-2100 or fill out our contact form to set up a free initial consultation today.


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